' IJAZ AHMAD CHAUDHRY, J.--- Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner has prayed that the order dated 24-11-2008 issued on 17-12-2008 passed by respondent No.3. May he declared as arbitrary, discriminatory, ineffective, inoperative and non-existent in the eyes of law while setting aside the same.
2. The brief facts narrated in this petition are that the petitioner was a student of M.Sc. Course 'Stat- 700 "Elements of Statistics and Biometry" and appeared in the original examination in Winter 2005- 2006 in which he failed. Then the petitioner appeared in Spring 2005-2006 and failed and the third time he appeared as per rules for the second repetition for Spring Semesters 2006-2007 in which he appeared in the first paper on 8-8-2007. The petitioner was rusticated with the allegation that he had beaten fellow student with the help of outsiders on 5-6-2007. When the petitioner was rusticated the Spring Session was going on and the petitioner had already appeared in the first appear and had to appear in two papers but due to the order passed on 8-8-2007 by the University of Agriculture, Faisalabad he did not remain the student of the University and was not in a position to appear for the remaining two papers. The said order was challenged by the petitioner by filing an appeal and the appellate authority set aside the sentence of the petitioner and converted the same into following sentences:---
(1) Fined Rs.7,000.
(2) Placed on probation for the rest of his stay in the University.
(3) He will submit a surety bond within ten days on judicial paper worth Rs.100 to the Director Students' Affairs duly signed by him, his father/guardian that he will refrain from activities antagonistic to good conduct and discipline during his remaining study period at the University.
' The petitioner was fined Rs.7,000, placed on probation for the rest of his stay in the University and was also directed to submit surety bond within two days on judicial paper worth Rs.100 to the Director Students' Affairs duly signed by him, his father/guardian that he 'will refrain from activities antagonistic to good conduct and discipline during his remaining study period at the University.
3. Learned counsel for the petitioner contends that due to the sentence awarded through the original order he could not appear in two papers of Spring Sessions 2006-2007 and made a request to the University to allow him to appear in the remaining two papers but the request was declined; that then the petitioner appeared in the examination being held in Spring 2007-2008 in which the petitioner failed. Now the grievance of the petitioner is that he was not allowed to avail the chance of third attempt and second repetition in which the petitioner could not appear due to the order of rustication passed against him having no fault and now the university is not allowing the petitioner to appear for the said chance which has been wasted due to rustication. It is also contended that it is by fourth repetition. It was the third repetition in which the petitioner has failed while the second repetition and the petitioner has been wasted due to the order of rustication and the petitioner may be allowed to avail another chance for second repetition which was wasted.
5. Learned counsel for the respondents on the other hand had opposed this petition and contends that the writ petition is not maintainable as the petitioner earlier filed a civil suit in which stay was not granted to the petitioner and he filed this writ petition. Filing of the suit was also admitted by the petitioner in his writ petition and he has also placed on the record copy of civil suit which is Annexure "D". When the writ petition was filed the civil suit was pending and copy has been placed on the record by the petitioner which is at page 25 through which stay order has been refused to the petitioner by the Civil Court.
6. It is also contended by the learned counsel for the petitioner in rebuttal that as the petitioner had been enrolled for Spring. Semesters 2006-2007, it will be considered that the chance had been availed by the petitioner and he failed in Spring 2007-2008, but he was not allowed to appear in the papers for Spring 2006-2007 due to rustication order, which was set aside and the petitioner is entitled to avail the chance there against. Relies on PLD 1971 SC 130 and PLD 1988 Lah. 325 in support of his contentions.
7. I have heard the learned counsel for the parties and also perused the record as also the impugned order. From the perusal of the case-law it is clear that even during the pendency of the civil suit writ petition can be maintained and can be decided so this objection is over-ruled. As far as merits of the case are concerned it is not denied by the University that the petitioner had appeared in original examination which was held in Winter 2005-2006 in which he failed. Then he repeated first time in Spring 2005-2006 in which he failed and third time he was enrolled for repetition in the Spring Semester 2006-2007 but could not appear due to rustication order passed against the petitioner which was subsequently set aside by the appellate forum. The petitioner only appeared in one gaper and the remaining papers were to be taken when the order was passed against the petitioner on 8-8-2007 whereby the petitioner did not remain the student of the University and could not appear in the remaining papers of Spring Semester 2006-2007. Then he appeared in Spring 2007- 2008 but failed. As the petitioner could not appear due to the order of rustication in the Spring Sessions 2006-2007 that cannot be considered as the second repetition availed by the petitioner. In such circumstances the second repetition will be considered when the petitioner appeared in Spring 2007-2008 as it was beyond the control of the petitioner due to the orders passed by the University through which he was rusticated and he ceased to be the student of the University. In such circumstances the petitioner is entitled for another chance in lieu of Spring Sessions 2006- 2007 and he will be allowed to appear in the next examination to be held by the respondents on the subject as the last chance.